현행 상법상 집행임원제도의 개선방안에 관한 연구

Abstract

Initially, the Korean Commercial Act strictly separated organizations that execute business and those that supervise business, but when the United States’ corporate governance system was introduced, the board of directors was given both the executive and supervisory functions. Due to this overlap, there have been limits for the board of directors to independently and transparently conduct its supervisory duties. To fix this issue, the Korean government amended the Commercial Act in 2011 to introduce the executive officer system. That is, executive officers are delegated the authority to execute business to conduct day-to-day business of their company, which is in turn supervised by the board of directors. This effectively separated the supervision and execution of business in corporations. The following paragraphs summarize potential ways to enhance the current executive officer system under the Commercial Act. The current Commercial Act allows companies to autonomously decide whether to have an executive officer(Article 408-2(1)). Due to this provision, most large companies do not have an executive officer. In order to properly implement the executive officer system in Korea, the establishment of this position in companies must be made mandatory by law, rather than leaving the decision to individual companies. The Commercial Act enables the board of directors in each company to determine the compensation of its executive officer, unless there are related regulations in the articles of association or approval from the general meeting of shareholders. Because it is unrealistic to expect companies to regulate the compensation of their executive officers via articles of association or general meeting of shareholders, in practice, we must assume that the board of directors determines the compensation for its executive officer. In such cases, “Say On Pay” policy should be implemented to ensure that the shareholders’ opinions are reflected in determining the compensation for the executive officer. The Commercial Act does not require executive auditors to investigate executives officers and related reports. This, however, is a legislative gap. As such, the law should make it mandatory for auditors or the auditing committee to investigate and report whether documents filed by the executive officer violate the law or articles of association, or are significantly unfair. Because the executive officer has almost the same duties and responsibilities as directors in practice, exceptions—and the implementation of business judgement rule in particular—regarding must also be reviewed under the same context.